UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TC X INCORPORATED; TC 126,

INCORPORATED,

Plaintiffs-Appellants,

v. No. 95-1399

COMMONWEALTH LAND TITLE

INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Joseph F. Anderson, Jr., District Judge.

(CA-93-640-0-17)

Argued: March 4, 1996

Decided: May 22, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and YOUNG,

Senior United States District Judge for the District of Maryland,

sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: H. Lane Kneedler, HAZEL & THOMAS, P.C., Richmond, Virginia, for Appellants. Michael Wallace Tighe, CALLISON,

TIGHE, ROBINSON & HAWKINS, L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF: S. Miles Dumville, Brian R. Marron,
HAZEL & THOMAS, P.C., Richmond, Virginia, for Appellants.

Susanne A. Hawkins, James W. Bradford, Jr., Louis H. Lang, CALLISON, TIGHE, ROBINSON & HAWKINS, L.L.P., Columbia, South

Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

TC X and TC 126, plaintiffs-appellants, are two corporations

which were formed to develop land in Tega Cay, South Carolina.1

Commonwealth Land Title Company ("Commonwealth") issued an

owner's title insurance policy with a face value of $8,400,000 covering the land being developed by TC X. At the time the policy was

issued, the land was subject to an ongoing lawsuit over ownership by

the Catawba Indian Tribe. Due to the litigation, the parties negotiated

a provision directed at insuring against the Catawba Indian Tribe's

claims. The agreed upon provision did not insure marketability as

defined by the common law, but rather defined marketability as

insurability.2 The policy thus provided a limited form of title insurance covering the Catawba Indian Tribe's claims. Commonwealth

also agreed to provide the "same affirmative coverage" set forth in the

policy with respect to the Catawba Indian Tribe's claims to any mortgagee or purchaser of the land.3

_________________________________________________________________

1 TC is an abbreviation for Tega Cay; the "X" in TC X is the Roman

numeral for "10," not the letter "x."

2 If any title insurance company licensed to transact business in South

Carolina would insure title to the property, then title to the property

would be considered marketable under the terms of the policy.

3 Paragraph nine of schedule B to the title policy provides:

This policy insures against loss or damage which the Insured

may sustain by reason of any right or claim of title which has

 2
A joint venture formed to develop a conference center on the

insured land. TC X planned to transfer the land to TC 126, who was

a party to the joint venture. TC 126 would then transfer the land to

the joint venture. The joint venture requested from Commonwealth a

policy identical to the one it had issued to TC X, but in the amount

of $50,000,000. Commonwealth agreed to issue affirmative coverage,

but only at the limited face value of the original policy--$8,400,000.

Commonwealth took the logical position that $50,000,000 was not the

same as $8,400,000.

The joint venture could not obtain financing for its project without

title insurance and, therefore, dissolved. TC X and TC 126 filed a

complaint in state court alleging that Commonwealth had breached

the title insurance contract, breached its duty of good faith and fair

dealing, and violated South Carolina law on unfair trade practices.

Commonwealth removed the lawsuit to federal court based on federal

diversity jurisdiction. 28 U.S.C. § 1332 (1988). The district judge,

convinced that there was no breach of contract in Commonwealth's

refusal to treat $8,400,000 as equal to $50,000,000, granted summary

judgment in favor of Commonwealth on all of the appellants' claims.

_________________________________________________________________

been or may be asserted, of record or not, by or on behalf of any

Indian or Indian tribe arising out of any treaty or any other transfer of land based on the Indian Non-Intercourse Act of 1790 or

any similar state or federal law including any matter raised by

the pending lawsuit filed in the United States District Court for

the District of South Carolina bearing Civil No. 80-2050-6, entitled Catawba Indian Tribe of South Carolina, also known as the

Catawba Nation of South Carolina v. State of South Carolina, et

al. This policy includes insurance against loss[or] damage by

reason of unmarketability of title (as hereinafter defined) on

account of said defect. With respect to said defect the offer of

any title insurance company licensed to transact business in the

State of South Carolina, including this company, to insure at its

regular rates the title to the land herein described in the manner

herein set forth above shall be conclusive evidence of the marketability of the title hereby insured. The company agrees that

upon request of any mortgagee or vendee of the insured, or the

mortgagee of such vendee, to issue its policy containing the

same affirmative coverage set forth above, but subject to the

same condition.

 3
Under South Carolina law, which applies in this diversity lawsuit,

the court first examines the plain language of the contract as to the

parties' intent. Martin v. Carolina Water Serv. Inc., 312 S.E.2d 556,

558 (S.C. Ct.App. 1984). "If the [policy's] language is clear and capable of legal construction, the language alone determines the force and

effect of the" policy. Id. Additionally,"where the agreement . . . is a

written contract, the intention of the parties must be inferred from the

contents of the whole agreement and not from any one of its several

parts." Id. Here, the plain language of the policy provides that Commonwealth is obligated to issue "the same affirmative coverage" to

future purchasers and mortgagees of the property. The affirmative

coverage provided in the contract clearly is, however, only for $8.4

million. Thus, Commonwealth was not obligated to issue a policy for

$50 million. Where a contract is not ambiguous and the intent is clear,

a court cannot interpolate into the agreement conditions that are not

there. Dean v. American Fire & Casualty Co., 152 S.E.2d 247, 248

(S.C. 1967).4 Here, the contract is not ambiguous--Commonwealth is

obligated only to issue subsequent policies with the same affirmative

coverage, which includes a limit on the face value of $8.4 million.

Accordingly, the judgment is

AFFIRMED.

_________________________________________________________________

4 TC X and TC 126 argue that to interpret the policy in the above manner is nonsensical because Commonwealth would be obligated to issue

six separate policies--each for $8.4 million, totalling approximately $50

million. That argument fails because neither TC 126 nor the joint venture

requested six separate policies for $8.4 million. Furthermore, the policy

requires the issuance of subsequent policies for $8.4 million only.

 4